Disciplinary
proceedings instituted by the Attorney Grievance Committee
for the First Judicial Department. Respondent, Harvey K.
Newkirk, was admitted to the Bar of the State of New York at
a Term of the Appellate Division of the Supreme Court for the
First Judicial Department on February 3, 2003.

Respondent
Harvey K. Newkirk was admitted to the practice of law in the
State of New York by the First Judicial Department on
February 3, 2003, under the name Harvey Kenyatta Newkirk. At
all times relevant to this proceeding, respondent maintained
an office for the practice of law within the First
Department.

On
December 14, 2015, respondent was convicted, after a jury
trial, in the United States District Court for the Southern
District of New York, of wire fraud in violation of 18 USC
§§ 2 and 1343, a felony. Respondent was sentenced
to six months incarceration, three years of supervised
release following his release from prison, and directed to
pay $3.1 million in restitution. Respondent's conviction
stemmed from his client's effort to purchase Maxim
Magazine. Respondent induced two lenders to loan his client
approximately $8 million to finance the purchase of Maxim by
making misrepresentations, including that his client's
father, a successful businessman with significant assets,
whom respondent falsely claimed to represent, would pledge
certain personal assets as collateral for the loans. In fact,
the father never agreed to provide financial backing for the
acquisition, nor did he authorize respondent to represent
him.

By
order entered January 24, 2017, this Court granted a motion
by the Attorney Grievance Committee (the Committee), seeking
a determination that the crime of which respondent was
convicted is a "serious crime" as defined by
Judiciary Law § 90(4)(d) and 22 NYCRR 603.12(b);
immediately suspending respondent from the practice of law
pursuant to Judiciary Law § 90(4)(f); and, pursuant to
Judiciary Law § 90(4)(g), directing respondent to show
cause before a hearing panel or a referee, within 90 days of
his sentencing or release from incarceration, if applicable,
why a final order of censure, suspension or disbarment should
not be made (2017 NY Slip Op 63023[u][1st Dept 2017]).

Respondent
now seeks an order, pursuant to the Rules for Attorney
Disciplinary Matters (22 NYCRR) § 1240.10, approving his
resignation and disbarring him from the practice of law. In
support of his application, respondent submits an affidavit
in which he acknowledges that he is currently the subject of
a "serious crime" proceeding pursuant to this
Court's January 24, 2017 order, and identifies Open Gate
Capital (Open Gate), a California entity, as the victim of
his fraudulent conduct in the amount of $3.1 million.
Respondent further attests that he cannot successfully defend
himself against allegations of professional misconduct based
upon his conviction, and that he submits his resignation
freely and voluntarily, without coercion or duress, and with
full awareness of the consequences, including that the
Court's acceptance and approval shall result in the entry
of an order of disbarment striking his name from the roll of
attorneys.

In
addition, respondent, pursuant to Judiciary Law §
90(6-a) and the provisions of the federal restitution order,
consents to the entry of an order by this Court directing
that he make monetary restitution to Open Gate totaling $3.1
million, less any amounts already paid out by himself and his
codefendant, or paid to the victim of his fraud by a third
party in the course of a civil proceeding after the date of
the restitution order, and that he reimburse the Lawyers'
Fund for Client Protection any amounts it has paid out with
regard to the $3.1 million loss. Respondent acknowledges that
his resignation is subject to any future application that may
be made for an order pursuant to Judiciary Law §
90(6-a), directing that he make restitution or reimburse the
Lawyers' Fund for Client Protection, and consents to the
continuing jurisdiction of this Court to make such an order.

The
Committee does not oppose the motion. Accordingly, as
respondent's affidavit of resignation conforms with 22
NYCRR 1240.10, his motion is granted to the extent of
accepting his resignation from the practice of law,
disbarring him, and striking his name from the roll of
attorneys effective nunc pro tunc to September 18, 2017.
Further, respondent is directed to make monetary restitution
to Open Gate totaling $3.1 million, less any amounts already
paid out by himself and his codefendant, or paid to the
victim of his fraud by a third party in the course of a civil
proceeding after the date of the restitution order, and to
reimburse the Lawyers' Fund for Client Protection any
amounts it has paid out with regard to the $3.1 million loss.
Respondent's resignation is subject to any future
application that may be made for an order pursuant to
Judiciary Law § 90(6-a), directing that he make
restitution or reimburse the Lawyers' Fund for Client
Protection, and this Court retains jurisdiction to make such
an order.

All
concur.

Order
...

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